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D03209538U 


CONTESTED  ELECTION 

FROM   ARKANSAS 


BETWEEN 


J.    P.   JOHNSON 


AND 


A.    H.    OAKLAND. 

RESPONSE    OF    A.    H.    1,'ARLAND 


TO    PETITION    OF 


!  J.    P.    JOHNSON. 


RICHMOND: 

ENQUIRER     BOOK     AND     JOB       PRESS, 
TYLER,  WISE,  ALLEGRE  *  8MITU. 

1862. 


To  the  Honorable  the  Committee  of  Elections  of  the  House  of 
Representatives  of  the  Congress  of  the  Confederate  States  of 
America : 

The  petition  of  Jilson  P.  Johnson,  of  Arkansas,  now  be- 
fore you,  protesting  against  my  right  to  a  seat  in  Congress 
as  a  Representive  of  the  3d  District  of  Arkansas,  and  set- 
ting forth  his  claims  to  the  same,  and  praying  for  a  decision 
in  favor  of  his  claim*,  demands  from  me  a  response,  which  I 
now  submit  to  you  for  your  consideration. 

It  is  trir£  there  was  an  election  held  in  said  3d  District  of 
Arkansas  a>  said  petition  states,  and  the  Governor  of  Arkan- 
sas, Henry  M.  Rector,  issued  his  proclamation  on  the  l»)th 
of  December,  1861,  and  in  such  proclamation,  among  other 
things,  it  was  set  forth  that  I  was  duly  elected  a  Represen- 
tative from  said  District  to  the  Congress  of  the  CVmfederato 
States. 

On  the  same  day  of  the  issuance  of  said  proclamation,  the 
said  Governor,  under  his  signature  and  official  seal,  in  due 
form  of  law,  issued  to  me  a  certificate  of  such  election, 
which  is  now  on  file  with  the  papers  of  Congress. 

I  deny,  most  emphatically,  that  the  petitioner  lias  shown 
that  the  Governor  of  Arkansas  committed  any  error  in  pro- 
claiming either  the  vote  of  Arkansas  County,  or  the  result, 
of  the  whole  vote;  and  I  deny,  also,  that  the  pretended  pa- 
pers or  evidences  submitted  by  petitioner  show  any  such 
error,  in  law  or  in  fact. 

From  an  inspection  of  the  papers  accompanying  the  peti- 
tion, it  does  appear  that  the  certificates  of  Maxwell,  as  clerk, 
and  Thompson  and  McDonald,  as  householders,  were  made 
out  and  sent  to  the  office  of  the  Secretary  of  State  as  alleged. 
And  from  those  papers  it  seems  that  two  different  returns 
were  made  out  bv  the  clerk  of  Arkansas  Countv  and  sent  to 


the  Secretary  of  State,  the  first  on  the  13th  of  November, 
18G1,  and  the  other  on  the  10th  of  December,  1861.  The 
first  return  from  that  County,  made  out  13th  November, 
18G1,  is  the  one  upon  which  the  Governor  made  his  calcula- 
tion, and  upon  which,  with  the  returns  from  the  other  Coun- 
ties, the  proclamation  of  the  Governor  and  the  certificate  of 
election  issued. 

Now,  beyond  this  return,  I  object  to  the  consideration  of 
any  other  that  may  be  before  the  committee,  and  for  these 
reasons  ; 

By  the  laws  of  Arkansas,  (Gould's  Digest,  chapter  G2. 
page  472,  section  56,)  it  is  provided  that  within  three  days 
after  the  polls  are  closed,  one  of  the  books  shall  be  sent  to 
the  clerk  of  the  County,  and  the  other  kept  by  the  judges 
for  the  inspection  of  all  persons.  Section  58  provides  that 
if  the  poll-book  is  not  sent  in  within  the  time  allowed,  the 
clerk"  of  the  County  shall  send  a  messenger  for  it,  and  in 
that  event  the  polls  shall  not  Be  compared  till  the  7th  day. 
Section  GO  pros  ides  that  on  the  5th  day  after  the  election, 
or  sooner,  if  oil  the  returns  are  in,  the  clerk,  with  two  justices 
of  the  peace  of  the  County,  if  they  can  be  conveniently 
had,  and  if  not,  then  two  householders,  shall  proceed  to  open 
and  compare  the  several  election  returns  which  have  been 
made  to  his  office,  and  make  abstracts  of  the  votes  given  for 
the  several  candidates.  The  returns  from  Arkansas  Coun- 
ty, upon  which  my  election  was  proclaimed,  being  made  out 
on  the  13th  of  November,  came  directly  within  the  time 
named  in  section  58,  but  those  upon  which  the  petitioner 
claims  his  election  were  not  made  out  until  a  month  and 
four  days  after  the  election,  and  could  not,  in  any  view, 
have  been  received  by  the  authorities  in  estimating  the  vote. 
And  the  returns  of  the  13th  November  purport  to  be  full 
and  complete,  that  is,  the  vote  of  the  whole  county. 

Section  71  makes  it  the  duty  of  the  Secretary  of  State  to 
send  a  messenger  to  every  County  from  which  returns  have 
not  been  received  for  two  mails  after  the  same  are  due.  In 
this  case  no  messenger  was   sent,  as  none  was  needed,  the 


returns  having  been  made  out  and  sent  up  regularly  and  in 
due  time. 

By  section  73,  the  Secretary  of  State,  in  the  presence  of 
the  Governor,  is  required  to  cast  up  the  votes  of  the  District, 
within  30  days  after  the  time  allowed  to  make  returns,  or 
sooner,  if  all  the  returns  shall  have  been  received ;  and  after 
casting  up  the  vote,  the  Governor  shall  immediately  issue 
hia  proclamation,  and  a  certificate  of  election.  In  this  in- 
stance, all  the  returns  being  received,  (just  a  montli  and  four 
days  after  the  election,)  the  Governor,  after  the  vote  was  cast 
up,  issued  the  proclamation  and  the  certificate  exactly,  and 
in  strict  accordance  with  the  law  ;  and  certainly  it  does  ap- 
pear that  this  is  sufficient  to  decide  the  case.  The  returns 
from  Arkansas  County,  dated  13th  November,  arc  made  out 
and  certified  by  the  deputy  clerk,  who,  under  the  law  of 
Arkansas,  has  as  full  power  to  do  this  as  his  principal.  (See 
same  Digest,  chapter  30,  page  248,  section  12.) 

Again,  when  the  clerk  and  the  two  householders  made  out 
one  set  of  returns  and  sent  them  to  the  Secretary  of  State, 
their  duties  were  discharged,  and  as  to  this  matter  they  were, 
so  to  speak,  functus  officio,  and  the  law  gives  them  no  author- 
ity to  meet  again  and  make  out  new  returns.  Their  act  in 
making  out  another  set  of  returns  was  a  mere  voluntary 
act,  and  of  no  higher  authority  than  if  any  three  private 
citizens  had  done  the  same  thing.  Were  this  not  so,  an 
election  would  be  endless.  Admit  this  can  be  done,  and  re- 
ceive these  returns  and  give  the  petitioner  the  seat,  and  I 
might  return  to  Arkansas  and  get  another  certificate  by 
these  gentlemen,  and  come  to  Congress  and  deprive  him  of 
his  seat,  and  so  it  might  continue  without  limit. 

And  the  receiving  of  these  last  returns  at  the  office  of  the: 
Secretary  of  State  was  an  act  of  like  character,  without 
authority  of  law. 

But  on  what  principle  of  law  or  reason  can  we  receive 
contradictory  certificates  of  clerks  to  these  facts — one  to  me 
to-day,  and  to-morrow  an  entirely  different  one  to  some 
other  person  !     By  this  process  all  the  scats  in  the  Congress 


may  be  filled  by  other  persona  than  those  now  holding  them, 
— and  the  rights  of  society  itself  completely  unsettled. 

Moreover,  this  last  certificate  of  the  clerk  does  not  pre- 
tend to  set  forth  the  particular  error  complained  of.  It  does 
not  state  when,  v>here  or  hot?  the  error  was  committed,  nor 
when,  where  and  how  discovered.  In  the  returns  of  the 
13th  November,  the  mere  aggregate  vote  is  given,  in  the 
other  the  vote  i.-  pretended  to  be  given  by  townships,  but 
yet  no  attempt  is  made  to  point  out  the  precise  difficulty. 
So  the  first  certificate  is  certainly,  to  say  the  least  of  it,  of 
as  high  grade  as  the  second — is  equally  in  form,  and  meets 
the  requirements  of  the  law.  It  cannot  be  set  aside  by  this 
other — a  mere  gratuity,  or  favor  on  the  part  of  these  gen- 
tlemen. 

It  is  plain,  then,  if  there  is  any  difficulty  in  the  returns,  , 
after  the  clerks  have  sent  them  to  the  Governor,  it  is  not  for 
the  Governor  to  go  behind  the  certificate  of  the  clerk  ;  he 
must  take  the  record  as  it  comes  to  him ;  he  cannot  alter  or 
amend  it,  but  the  only  Avay  to  meet  it  is  to  bring  the  poll- 
books  and  the  ballots  before  Congress,  and  there  trace  out 
the  error.  This  jurisdiction  rests  alone  in  Congress,  and  ' 
this  is  the  testimony  upon  which  to  proceed,  upon  the  fami- 
liar principle,  that  the  best  evidence  of  which  the  case  will 
admit  must  be  furnished;  and  if  .you  wish  to  go  behind  a 
clerk's  certificate  and  the  Governor's  proclamation  and  cer- 
tificate, to  correct  a  mistake  in  election  returns,  this  is  the 
only  evidence  that  exists  upon  which  to  make  the  correc- 
tion. From  these  the  clerk  in  the  first  instance  makes  out 
his  estimate,  and  if  error  is  committed  it  is  there,  and  the 
books  and  ballots  compared,  alone  will  show  it.  In  cases  of 
contested  elections,  the  law  of  Arkansas  provides  for  the 
opening  of  the  ballots  filed  with  the  clerk  (section  59),  doubt- 
less to  prevent  the  very  thing  that  is  attempted  to  be  done 
here  by  clerk's  certificates,  and  certificates  of  private  citi- 
zens, to  correct  errors  or  mistakes  in  counting  out  the  votes. 

I  must  protest,  upon  another  strong  ground,  against  this 
last   certificate   being  received.     After  the  clerk  and  the 


householders  had  performed  their  duty  and  sent  up  the  re- 
turns in  my  favor,  which  entered  into  and  formed  part  of 
my  right  to  the  scat  in  Congress,  I  was  certainly  entitled  to 
notice  of  the  time  and  place  of  making  this  recount.  It 
was  a  matter  of  some  importance  to  me  to  know  this  and  be 
there,  or  represented,  even  if  they  had  the  authority  to  do 
this  at  all,  which  I  here  positively  deny.  To  be  confronted 
by  the  opponent's  witnesses,  or  to  be  notified  of  the  time 
and  place  of  taking  proof  to  affect  one's  claims,  have  always. 
in  our  country,  been  regarded  as  the  dearest  of  his  rights, 
and  I  know  of  no  good  reason  why  it  should  be  disregarded 
and  ignored  in  a  contest  for  a  seat  in  a  nation's  Congress. 

When  these  gentlemen  were  gravely  at  work  making  this 
recount,  I  was  here  at  the  Capitol  trying  to  do  my  duty  as 
a  member  of  the  Provisional  Congress — hundreds  of  miles 
distant  from  the  place  of  their  convocation,  and  was  entirely 
ignorant  of  the  fact,  that  this  great  work  Avas  going  on. 

If  it  is  admitted,  however,  that  the  certificate  relied  on  by 
the  petitioner  be  correct  and  legitimate,  it  only  proves  at 
last  that  my  majority  in  Arkansas  County  is  only  G2  votes 
instead  of  102,  as  set  forth  in  the  count  of  the  votes  on  the 
13th  November.  There  are  twelve  other  Counties  in  the 
District,  and  from  all  of  them  returns  were  received  and 
calculated.  While  this  pretended  error  may  have  occurred 
in  Arkansas  County,  others  of  the  same  kind  may  have 
taken  place  in  other  Counties  as  against  me.  If  the  vote  of 
Arkansas  County  be  not  as  the  Governor  proclaimed  it.  may 
not  all  or  some  of  the  others  be  misstated  ?  And  while  the 
petitioner  rejects  one  part  of  the  proclamation,  he  seems  to 
rely  upon  it,  and  make  it  the  basis  of  his  claim  here,  in  all 
others !  If  the  question  of  errors  and  mistakes  in  tho 
votes  of  the  Counties  be  an  open  one,  I  simply  request  the 
privilege  of  examining  and  comparing  tho  votes  of  the  other 
counties  to  ascertain  who  is  really  elected.  It  may  be,  as 
there  were  some  seven  candidates,  that  neither  the  petitioner 
or  myself  is  elected  !  This  is  strongly  impressed  upon  my 
mind,  as  a  very  intelligent  and  highly  respectable  citizen  of 


s 

Union  County.  Arkansas,  in  a  letter  of  the  23d  ultimo  in- 
formed me  that  Ihad  received  six  mor  in  that  county 
than  the  return-  gave  mo,  and  this  could  be  proved  by  the  poll- 
books.  This  letter  I  hive,  and  am  ready  at  any  time  to  pro- 
it  before  the  committee.  And  1  must  ask  the  right  to 
have  the  necessary  examination  and  proof  taken  in  the  c 

tablish  the  true  state  of  the  case  throughout  the  Dis- 
trict— if  the  committee  determine  there  is  Bhowing  enough 
to  justify  an  enquiry  into  the  matter  at  all.  This  is  due  to 
those  who  claim  rights  here,  to  the  people  of  the  District,  as 
well  as  the  whole  State  of  Arkansas, 

However,  the  most  interesting  feature  of  this  remarkably 
interesting  case  is  this.  On  the  7th  of  December,  1861", 
the  clerk  of  Arkansas  County  makes  out  another  abstract  of 
the  vote,  by  townships,  and  certifies  to  it,  and  sends  it  to 
the  Governor  of  Arkansas,  to  take  the  place  of  the  first  one 
made  out,  dated  November  13th,  1SG1.  In  this  return  of  the 
7th  of  December,  (which,  for  the  sake  of  designation,  let 
us  call  it,  the  intermediate  return,)  the  petitioner  received  OS 
votes,  and  myself  86  votes,  which  reduces  my  majority 
from  the  first  count  14  votes,  but  still  leaves  mc  elected  by 
18  votes.  This  certificate  is  from  the  same  clerk,  and  prior 
in  time  to  the  one  relied  on  by  the  petitioner,  and  is,  be- 
yond question,  entitled  to  as  much  consideration,  and  is 
herewith  presented,  marked  X,  and  asked  to  be  received  as 
part  of  this  response;  it  is  authenticated  in  the  same  man- 
ner as  the  papers  of  the  petitioner  arc.  His  papers  are  no 
evidence,  nor  is  this  one  alluded  to — but  if  his  are,  this  is — 
and  the  result  is,  I  am  elected  at  last,  "  the  best  two  in 
three,"'  which,  the  world  over,  is  considered  decisive  and 
conclusive.  If  the  committee  will  consider  his  papers,  Ire- 
quest  a  kind  consideration  of  this  one,  which  then  must 
leave  the  official  acts  of  the  Governor  to  decide  the  case.  In 
other  words,  the  very  contradiction  of  these  papers  must 
throw  such  doubts  over  the  matter  as  to  leave  it  to  be  de- 
termined by  the  certificate — which  is  the  highest  and  best 
evidence   of  the   legal    right,   not   to   be  set  aside   on   mere 


9 

doubt,  but  only  in  cases  of  clear  mistake  or  fraud,  and  those 
cases  clearly  and  fully  made  out.  All  official  acts  have  the 
benefit  of  the  presumption  that  they  are  done  rightly,  and 
when  they  are  impeached  for  fraud  or  mistake,  the  particu- 
lar fraud  or  mistake  must  be  distinctly  pointed  out  and  dis- 
tinctly proved. 

Then,  briefly,  the  petitioner's  evidence  is  not  admissible 
for  any  purpose.  If  admissible,  it  proves  nothing  and  does 
not  meet  the  case. 

And,  if  admissible,  I  offer  evidence  of  the  same  dignity 
which  contradicts  it  directly;  and  with  this  contradiction  in 
the  case,  the  certificate  of  the  Governor  properly  and  regu- 
larly issued  under  the  law  as  recited,  must  be  received  as 
conclusive. 

I  beg  pardon  for  saying  so  much,  but,  I  could  not  well  say 
less.     I  crave  the  earnest  attention  of  the  committee  to  the 
points  suggested,  and  hope  they  may  aid  the  committee  in 
coming  to  some  just  conclusion  in  the  premises. 
Respectfully, 

A.  II.  GARLAND/ 

Richmond,  February  20th,  1862. 


10 


X 


A  list  of  votes  given  on  the  Gth  day  of  November.  1861. 
in  Arkansas  County,  Ark.,  for  Congress. 

[Here  follows  the  vote  by  townships.] 

State  ok  Arkans  vs.  County  of  Arkansas: 

I,  Joseph  II.  Maxwell,  Clerk  of  the  Circuit  Court,  and 
ex  officio  Clerk  of  the  County  Court  in  and  for  the  County 
aforesaid,  do  hereby  certify  that  I  have  examined  the  poll- 
books  of  the  Congressional  election,  held  in  said  County  oii 
the  6th  day  of  November,  1361,  and  that  the  above  and 
foregoing  abstract  is  a  full  and  correct  list,  and  that  I  found 
that  A.  ][.  Garland  received  186  votes;  .T.  P.  Johnson  re- 
ceived 98  votes;  S.  F.  Arnett  received  5  votes;  J.  C.  Mur- 
ray received  91  votes;  Ilarley,  11!  votes;  Grace,  4,  and 
•lames  1. 

In  testimony  whereof  I  hereunto  set  my  hand 

,-v_^^      ^^  a^x  t^e  sca|  0f  m,.  office  the  7th  December, 

(   ^~  >   1861. 

Signed, 

JOSEPH  II.  MAXWELL,  Clerk. 

Here  follow  the  certificate  of  the  Secretary  of  State,  &c, 
that  these  returns  were  received.  &c,  &c. 


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Hollinger  Corp. 
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